IN THE CASE OF: BOARD DATE: 3 January 2020 DOCKET NUMBER: AR20170000226 APPLICANT REQUESTS: incapacitation (INCAP) pay for the period of 9 May 2015 to 2 May 2016, in which he states he was unable to work due to an injury incurred during military training. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Job Description * Statement of Earnings * Soldier Brief * Authorization for BAQ * Line of Duty Approval memorandum * Physical Profile * INCAP Pay Claim * Physician Statement * Statement of Medical Examination and Duty Status FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he fractured his leg during military training. He was not awarded INCAP pay as there was an error in processing his reenlistment. He was thought to be discharged before the packet could be completed and processed. He wishes to be paid the appropriate amount of financial compensation that is due to him following this incapacitating injury. Despite paperwork indicating otherwise, due to a processing error his packet was denied due to separation in November of 2015. However, upon receiving a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) from the date of discharge was listed as 2 May 2016, 6 months after the initial denial. An attempt was made to correct this by contacting the Inspector General, but as he had already been separated at the time of discovery, they were unable to correct the issue. He has suffered severe financial hardship as a result of this error and was unable to return to his previous employment and would like it to be corrected. 3. Review of the applicant's service records shows: a. He enlisted in the California Army National Guard (CAARNG) on 3 November 2007. b. He entered active duty for training (ADT) on 10 June 2008 and completed training for award of military occupational specialty 11B (Infantryman). He was released from ADT on 26 September 2008. c. He entered active duty on 5 December 2008 and he served in Kosovo from 14 February 2009 to 12 November 2009. He was honorably released from active duty on 8 December 2009. d. On 23 September 2014, he extended his Army National Guard (ARNG) enlistment by one year. e. On 13 May 2015, a Statement of Medical Examination and Duty Status was submitted. It shows the applicant sustained an injury to his leg, right foot closed tibia/fibula fracture following a 12-foot fall from an obstacle course during inactive duty training on 9 May 2015 at Camp San Luis Obispo. f. On 14 May 2015, the Chief, Medical Services Officer, CAARNG determined his injury was in the line of duty. g. On 31 May 2015, he submitted claims for INCAP pay for the periods 11 May to 31 May 2015, 1 June to 30 June 2015, 1 July to 31 July 2015, 1 August to 31 August 2015, 1 September to 30 September 2015, 1 October to 31 October 2015, and 1 to 2 November 2015. h. With his claims, he provided a military physician’s statement in support of his claim, for the period 29 May 2015 to 29 August 2015, 7 August 2015 to 17 November 2015, and 17 November 2015 to 5 January 2016. i. He was honorably separated from the CAARNG on 2 November 2015 due to his expiration of service obligation. His NGB Form 22 shows he completed 8 years of service. 4. The NGB rendered an advisory opinion on 28 October 2017 in the processing of this case. An NGB official recommended partial approval of INCAP pay from the date of his injury on 9 May 2015 to the date of his release to full weight bearing of his right leg on 22 September 2015. The official states: a. The Soldier states he fractured his leg during military training and was not awarded INCAP pay. He contends that his INCAP pay request was denied because at the time his separation d ate was believed to be November 2015. However, he states his NGB form 22 lists a discharge date of 2 May 2016. The Soldier states he has suffered financial hardship due to this error because he was unable to return to his previous employment. b. While attending IDT training on 9 May 2015 the Soldier injured himself when climbing a wall during a training exercise. He was seen at Sierra Vista Regional Medical Center on 9 May 2015 and diagnosed with a fractured right tibia and fibula. The Soldier underwent surgery to correct his injury. The Soldier was honorably discharged from the CAARNG on 2 November 2015, Expiration of Service Obligation as reflected on his NGB Form 22. c. Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers Processing Procedures) states that, in order to qualify for Army disability benefits, Soldiers must have incurred or aggravated an injury, illness, or a disease condition while in a duty or travel status. Prerequisites for entitlement to INCAP pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income. Soldiers are entitled to a portion of the same monthly pay and allowances as is provided members of the Active Army with corresponding grade, length of service, marital status, and number of dependents, for each period the Soldier is unable to perform normal military duties or can demonstrate loss of compensation from nonmilitary income. d. Department of Defense Instruction (DODI) 1241.2 (Reserve Component INCAP System Management), paragraph 4.3. states, it is Department of Defense policy to authorize pay and allowances, to the extent permitted by law, for Reserve Component members who are not medically qualified to perform military duties, as determined by the Secretary concerned , because of an injury, illness, or disease incurred or aggravated in the line of duty or to provide pay and allowances to Reserve Component members who are fit to perform military duties but experience a loss of earned income because of an injury, illness, or disease incurred or aggravated in the line of duty. e. The Soldier's case was forwarded to the Army National Guard Office of the Chief Surgeon. After review of the documents provided the Chief Surgeon notes the Soldier was released to full weight bearing on 22 September 2015 by his orthopedic surgeon. The Chief Surgeon notes there is no documentation from that point in which the treating physician notes the Soldier inability to work. The follow up visits note some weakness of his right leg, consistent with recovery of that type of injury. Based on the information provided the Chief Surgeon determined the Soldier was eligible for INCAP pay from the date of his injury on 9 May 2015 to the date his physician released the Soldier to full weight bearing on 22 September 2015. f. This advisory opinion was coordinated with the Line of Duty/INCAP Pay Section. The CAARNG concurs with this recommendation. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or provide a rebuttal. He did not respond. 6. Army Regulation 135-381, in order to qualify for Army disability benefits, a Soldier must have incurred or aggravated an injury, illness, or a disease condition while in a duty or travel status. Prerequisites for entitlement to INCAP pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income. Soldiers are entitled to a portion of the same monthly pay and allowances as is provided members of the Active Army with corresponding grade, length of service, marital status, and number of dependents, for each period the Soldier is unable to perform normal military duties or can demonstrate loss of compensation from nonmilitary income. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found partial relief was warranted. The applicant’s contentions and the advisory opinion were carefully considered. The Board agreed with the ARNG Office of the Chief Surgeon advisory opinion, in which the CAARNG concurred with the opinion in that the applicant should be authorized INCAP pay from the date of his injury on 9 May 2015 to the date of his release to full weight bearing of his right leg on 22 September 2015. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant was authorized INCAP pay from the date of his injury on 9 May 2015 to the date of his release to full weight bearing of his right leg on 22 September 2015. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. DOD Directive 1241.01 states Incapacitation (INCAP) is a physical disability due to injury, illness, or disease that prevents the performance of military duties, or which prevents the Soldier from returning to the civilian occupation in which the Soldier was employed at the time of the injury, illness, or disease. INCAP Pay is the compensation Soldiers receive for their injuries considered in line of duty that require further medical care. 3. Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers Processing Procedures) provides procedures regarding processing of INCAP pay for members of the USAR and ARNG. It states INCAP is separated into two tiers: Tier I – Full Military Pay and Allowances: for Soldiers who are unfit to perform military duties as a result of an injury, illness, or disease caused by military service and Tier II – Lost Civilian Wages for Soldiers who are fit to perform their military duties by a military medical physician, but are unable to perform their civilian job and can demonstrate a loss of civilian earned income. a. In order to qualify for INCAP, the Soldier’s injury, illness, or disease must have occurred or been aggravated during a period of Active Duty and/or Inactive Duty of more than 30 days (or less than 30 days). Also, an In Line of Duty (ILD) determination is necessary to demonstrate that the injury, illness, or disease incurred was military service connected. b. Soldiers who receive INCAP pay may be entitled to full pay and allowances, incentive pay, special pay, and medical and dental care. INCAP pay cannot exceed full military pay and allowances. Soldiers who receive INCAP pay are not entitled to accrue leave or retirement points. c. Other civilian earned income and Department of Veterans Affairs (VA) benefits will also be subject to deduction from the Soldier’s INCAP Pay. This includes normal wages, salaries, professional fees, tips, or other compensation for personal services actually rendered, as well as income from income protection plans, vacation pays, and sick leave that the Soldier elects to receive. d. INCAP Pay shall terminate whenever the Soldier is returned to military duties and/or civilian employment, the Soldier receives a determination of Not in Line of Duty (NLD), the Soldier is discharged from the service, upon retirement or becomes deceased. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000226 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1